Thursday, 15 October 2015

Hidden cameras and human rights: the ECHR clarifies the position

Lorna Woods, Professor of Internet Law, University of Essex

When does the use of hidden cameras by journalists breach human rights? This issue was clarified by recent judgment of the European Court of Human Rights in Bremner v Turkey. The case was brought by an Australian national about the use of surreptitious
filming of him in his flat talking about Christianity. The filming took place as part of the making
of a documentary about “foreign pedlars of religion” in
Turkey. The programme broadcast revealed
Bremner and in particular did not blur his face. Bremner then sued the programme makers, but
was unsuccessful given the public interest in the topic, and the matter came
before the ECHR. Bremner argued that
there had been a violation of Article 8 ECHR (right to private life) as regards the content of the programme
and the failure of the Turkish courts to indemnify him. In Bremner’s view the
programme exposed him to threats of aggression.
He also referred to Articles 6 (right to a fair trial), 9 (right to religion) and 10
(freedom of expression).

The Court confirmed that the obligation under Article 8 was engaged
via the taking of unwanted photos or video, and that Art 8 included positive
obligations on the state to protect the right to private life, even as far as
between individuals (citing the Grand Chamber decision in Fernandez Martinez v. Spain). Although the boundary between the positive
and negative aspects of the right is sometimes a little fuzzy, as the Court recognised,
in this context the court emphasised the central point was the need to identify
the appropriate balance between the individual and the public interest. The Court also re-iterated that in cases
involving the media and the balance between Articles 8 and 10, the outcome
should not differ on whether the case was brought by the subject of the story
under Article 8 or by the media under Article 10, and the margin of
appreciation should be the same. It
reiterated its principles about the importance of the press (reflecting the
Turkish government’s arguments on this point) but also the factors in Axel Springer and Von Hannover about the scope of the public interest when balanced
against the right to private life. Although
the subject matter of the documentary was in the public interest (and moreover
did not amount to hate speech), techniques such as the surreptitious use of
cameras were damaging to private life and must be used with restraint and in
accordance with ethical principles.
While the Court did not rule out the use of such techniques altogether
(referring to De La Flor Cabrera in
which video surveillance in a public place which was used for evidence in court
did not constitute a violation), it suggested that they would be used as a
mechanism of last resort where the information would be otherwise unobtainable.

In terms of balancing freedom of expression with the right to private
life, the court noted that Bremner was – contrary to the assertions of the
Turkish Government- not a public figure and was not in the public arena. Specifically, the Court rejected the argument
that because Bremner was a journalist he would be a public figure. Bremner was not acting in that capacity and
he was unknown to the general Turkish public.
There was nothing to suggest to him that he might be the subject of
public criticism; rather he thought he would be discussing Christianity with
some people who had expressed an interest in the subject.

Looking at the failure to blur Bremner’s face, the Court noted that the
domestic courts had not considered what Bremner’s identification added to the
public interest bearing in mind that he was not famous. The Court distinguished this case from Haldimann, in which a violation of the
Article 10 rights of journalists had been found. In that case, and what was crucial to the
determination, was that the journalists had pixelated the face and altered the
voice of the person in issue. Thus, despite the margin of appreciation, the
national courts had not struck an appropriate balance between freedom of
expression, nor afforded adequate protection to Bremner’s Article 8
rights. Consequently there had been a
violation of this right.

As regards the right to religion, Bremner had not exhausted national
remedies and the claim was therefore inadmissible. The other two claims were also found to be
inadmissible.

Comment

This case follows reasonably swiftly on from the case of Haldimann earlier this year, which also
concerned surreptitious journalistic techniques. It may also be seen to be a contrast to
Haldimann. There journalists had been
subject to some low level fines for surreptitious filming and the Court found a
violation of Article 10. Here, a case
brought under Article 8, the State was found not to have done enough to protect
privacy rights. Both cases relied on the
principles laid down in Axel Springer: the contribution
to a debate of general interest, how well-known the person being reported on is
and the subject of the report, the person’s prior conduct, the method of
obtaining the information, the veracity, content, form and repercussions of the
report, and the penalty imposed. In Haldimann, the Court
noted that although the subject of the report was a private individual, the
report criticised certain commercial practices rather than focussing on the
individual, the business practices were a matter of public interest, and –
crucially – his face was obscured through pixellation and his voice
altered. The court has repeatedly
held that safeguards afforded to journalists reporting on matters of public
interest apply subject to the condition that they are acting in good faith, in
accordance with the ethics of journalism and have a sufficient factual basis
for their reporting. In Haldimann,
the subject did not even challenge the journalists’ account of events. Haldimann
was seen as important because of the acceptance of the infringement of the
Article 8 rights of a private individual as opposed to a public person.

Bremner shows that there are limits to this possibility. A crucial
distinction between the cases was the fact that Bremner was not disguised – his
face was broadcast without pixellation. Indeed,
the Court in Bremner suggested that
irrespective of the significance of the story in general, a failure to blur an
individual’s face would be problematic [para 81]. Another difference – though the Court did not
emphasise this element - was the invasion took place in his flat; even though
Article 8 applies to business premises, presumably an invasion into the home
carries more weight than intrusion as a business. Even in Haldimann
it was unclear whether the Court would support an intrusion where there to be
other options for acquiring the evidence to support a story; Bremner re-iterated the principle that
such techniques should be used only as a matter of last resort. While this arguably reintroduces some doubt
in the assessment, it certainly matches the approach taken by broadcasters in
this country, and even the terms of the Editors’ Code in respect of the
press. What does seem clear (and lines
up with the much older case of Peck) is that when footage or photographs of
private individuals are broadcast, pixellation and other methods of disguising
the subject are important and indeed may be a boundary line factor between
acceptable and unacceptable. What is
less clear from this is whether the filming of subjects in their homes is a
separate infringement against which the state must protect.